Opinion
654 TP 17–02198
06-08-2018
In the Matter of Brett D. BERSANI, Petitioner, v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, Respondent.
HOGANWILLIG, PLLC, AMHERST (REBECCA M. KUJAWA OF COUNSEL), FOR PETITIONER. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR RESPONDENT.
HOGANWILLIG, PLLC, AMHERST (REBECCA M. KUJAWA OF COUNSEL), FOR PETITIONER.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 78 seeking to annul the determination revoking his driver's license based on his refusal to submit to a chemical test following his arrest for driving while intoxicated (DWI). We confirm the determination. Contrary to petitioner's contention, the determination is supported by substantial evidence. The hearing testimony of the arresting officer, along with his refusal report, which was entered in evidence, established that petitioner refused to submit to the chemical test after he was arrested for DWI (see Vehicle and Traffic Law § 1194[2][a][1] ; see generally Matter of Huttenlocker v. New York State Dept. of Motor Vehs. Appeals Bd. , 156 A.D.3d 1464, 1464, 65 N.Y.S.3d 881 [4th Dept. 2017] ). The Administrative Law Judge was entitled to discredit any testimony to the contrary (see Huttenlocker , 156 A.D.3d at 1464, 65 N.Y.S.3d 881 ; Matter of Mastrodonato v. New York State Dept. of Motor Vehicles , 27 A.D.3d 1121, 1122, 815 N.Y.S.2d 371 [4th Dept. 2006] ). Petitioner's remaining contentions are raised for the first time in this proceeding pursuant to CPLR article 78, and he therefore failed to exhaust his administrative remedies with respect to those contentions (see Mastrodonato , 27 A.D.3d at 1122, 815 N.Y.S.2d 371 ).